96 Ga. 356 | Ga. | 1895
An action for damages was brought by Julia Board-man against the East Tennessee, Virginia and Georgia Railway Company. The court overruled a demurrer to
The declaration does not allege that those portions of
The demurrer was general, and also contained several special grounds. In the view we take of the case, however, we deem it unnecessary to deal with the latter; and accordingly, have confined this discussion to the question of the sufficiency of the declaration to withstand a general demurrer.
We have reached .the conclusion that the plaintiff’s declaration set forth no cause of action against the defendant. We will remark at the outset that this case differs essentially from that of Ford et al. v. Harris et al., 95 Ga. 97, and the cases there cited. In those cases arose the question as to the right of a vendor to'keep up and maintain obstructions in the streets shown upon plats, as against the right of those who had purchased lots sold by him with reference to the plats, and their successors in title, to have the obstructions removed and the streets kept open for use. They were not actions for damages alleged to have been occasioned by placing obstructions in the streets. The present case is an action of this latter character, and is in no sense a proceeding to have streets opened by the removal of obstructions unlawfully placed therein.
It is obvious from an inspection of the plaintiff’s declaration, that if she has been damaged at all, it is an injury shared in by the general public. It may affect her in a greater degree than it does other persons, but at last it is a question of degree only. In other words, what she really complains of is no more nor less than common nuisances, resulting in no special injury or damage to her property, but affecting, to a greater or less extent, the public at large. If the unopened and unused portions of the land alleged to be “streets” are to be regarded as actual streets, placing obstructions in
' - -In view of the fact that the conveyance under which the defendant holds did not embrace the streets included within the boundaries of its purchase, it might be perfectly fair and proper to treat the defendant, as to the matter in hand, as a mere trespasser; hut even in this view of the matter, we do not think the law is otherwise than as above announced. Judgment reversed.